The Bali Nine could happen again tomorrow: the rules still allow Australian police to provide information in death penalty cases

It has been welldocumented that the intervention of the Australian Federal Police played a central role in the arrest of the Bali Nine in Indonesia in 2005, ultimately leading to the execution by firing squad of Andrew Chan and Myuran Sukumaran on 29 April 2015. Without the information provided by the AFP – apparently on its own initiative, without a request from Indonesia – the Bali Nine would not have been arrested in Indonesia for their role in attempting to smuggle 8kg of heroin into Australia.

In the days since the executions, much has been made of the changes to the AFP’s guidelines on international co-operation made in 2009, ostensibly to prevent such a travesty occurring again, and the changes made to the Ministerial Direction to the AFP in May 2014, which removed any reference to the death penalty as a reason for withholding cooperation with other countries. Foreign Minister Julie Bishop has accused Labor of playing politics with the executions by querying the 2014 change to the Ministerial Direction. This furore, though, misses the larger point: both the AFP Guidelines and the Ministerial Direction are profoundly underwhelming efforts to avoid complicity in the death penalty, and neither would have made a jot of difference to the fate of the Bali Nine if they had been in place in 2005.

The death penalty under human rights law

Under international human rights law, there is an unapologetic double standard when it comes to the death penalty. There is a clear preference for the abolition of the death penalty, while recognising the political reality that a number of states (though that number is declining) insist on using it as the ultimate sanction in their criminal justice system. Accordingly, for states that have chosen not to abolish the death penalty, international human rights law permits its use, but subject to strict limitations. It must only be imposed following final sentence imposed by a competent court after a fair trial; it must only be imposed for the most serious crimes (which has been interpreted to mean violent offences such as murder, genocide and terrorist offences, but not drug trafficking); it must be subject to a process for pardon or commutation of sentence; and there are prohibitions on executing minors and pregnant women. For states such as Australia, which have abolished the death penalty, international human rights law not only prohibits death sentences and executions, but also prohibits exposing a person to the death penalty in another state through extradition.

Indonesia acceded to the International Covenant on Civil and Political Rights – the treaty that sets out these principles relating to the death penalty – in February 2006, after the Bali Nine were arrested and ironically the same month as the initial death sentences were handed down. There are a number of arguments as to whether Indonesia has breached its international human rights obligations, which turn on the question of what Indonesia’s legal obligations were at the relevant time. Certainly the sentences were not imposed for a “most serious crime” as that term is understood in international law; there are questions about the fairness of the trial, given the allegations that the judges sought bribes to impose a lesser sentence; and defence lawyers have raised further questions about the genuineness of the process of seeking a commutation of sentence.

However, regardless of Indonesia’s legal obligations, the fact remains that Australia, as an abolitionist state, has independent obligations not to expose a person to the death penalty. In April 2009, in a clear response to the Bali Nine case, the UN Human Rights Committee stated that Australia’s lax procedures in international police co-operation in death penalty matters was in breach of Australia’s obligations. The Committee’s 2009 Concluding Observations on Australia said: “The Committee notes with concern … the lack of a comprehensive prohibition on the providing of international police assistance for the investigation of crimes that may lead to the imposition of the death penalty in another state, in violation of the State party’s obligation” (emphasis added).

Australia’s policies on international cooperation

So what are these documents that are supposed to safeguard against police repeating the process of exposing individuals to the death penalty overseas?

The Mutual Assistance in Criminal Matters Act states that a request for assistance, which requires the approval of the Attorney-General, may be refused in cases that may lead to the death penalty, but gives the Attorney-General the discretion to allow the assistance in any case.

However, on the basis of the information that has come to light, it appears that the Indonesian authorities did not request assistance in apprehending the Bali Nine. Rather, the AFP offered up the details of the Australians to the Indonesian police and asked them to make further enquiries. It seems more appropriate to characterise this communication as a request for assistance from Australia to Indonesia. As such, the referral to the Attorney-General is not triggered.

The Australian Federal Police Act gives the Commissioner of the AFP the discretion to run the AFP and control its operations, subject to the legislation and any written directions issued by the responsible Minister.

Pursuant to that power, the AFP National Guideline on International Police-to-Police Assistance in Death Penalty Situations were issued in January 2009. Under the guidelines, after a person has been detained, arrested or charged, ministerial approval is required before providing assistance in relation to a death penalty offence. However, if a person has not been detained, arrested or charged – remembering that in the Bali Nine case, it was the information provided by the AFP that led to the arrests – the Guideline requires only that assistance be approved by a senior AFP manager.

In deciding whether to authorise the provision of information, the manager must consider the following factors:

the purpose of providing the information and the reliability of that information

the seriousness of the suspected criminal activity

the nationality, age and personal circumstances of the person involved

the potential risks to the person, and other persons, in providing or not providing the information

Australia’s interest in promoting and securing cooperation from overseas agencies in combatting crime

the degree of risk to the person in providing the information, including the likelihood the death penalty will be imposed.

Accordingly, the risk of being sentenced to death is just one factor to be weighed, along with Australia’s interests in promoting co-operation with foreign authorities, among other factors.

Because the authority of the AFP Commissioner is subject to written directions of the Minister, the Ministerial Direction would prevail over the Guideline to the extent of any inconsistency, or it may provide guidance in how any discretion in the Guideline should be exercised.

In July 2010, Labor Home Affairs Minister Brendan O’Connor issued a Ministerial Direction in broad terms. It listed 11 strategic priorities, opening with “Countering the threat of terrorism to the safety and security of Australians and Australian interests, inside and outside Australia, including through countering violent extremism”, and including “Contributing effectively to the Government’s international law enforcement interests including matters involving cooperation to combat transnational organised crime, responses to emergencies, law and order capacity building missions, and participation in internationally mandated peace operations”, but making no mention of the death penalty or human rights.

The Direction then goes on to say that the Minister expects the AFP to “Take account of the Government’s long-standing opposition to the application of the death penalty, in performing its international liaison functions.” That line appears between a directive to adhere to government policies and another to continue to develop systems for sharing information with international law enforcement and intelligence agencies.

In the context of the government’s broader policy agenda, it is difficult to see what “taking account” of Australia’s opposition to the death penalty would add to the calculus set out in the AFP Guideline of whether or not to provide information . The Direction also included a requirement for the AFP to report to the government biannually on the nature and number of cases where information was provided to foreign agencies in death penalty cases.

In May 2014, Liberal Justice Minister Michael Keenan issued a new Ministerial Direction to replace the one issued by his Labor predecessor. All references to the government’s opposition to the death penalty and the obligation to report on information-sharing in death penalty cases have been removed from the 2014 Direction. However, the 2009 AFP Guideline remains in place, as does the system of ministerial approval under the Mutual Assistance in Criminal Matters Act.

There is no question that the reduced emphasis in the 2014 revision of the Ministerial Direction is troubling, and may reflect a reduced importance placed by the current minister on opposing the death penalty. The Minister legitimately has some explaining to do on that score. But does it actually make any difference?

What will the AFP do next time?

If the Bali Nine scenario was repeated today, and an AFP officer sought permission to divulge information to Indonesian authorities, what would the process be?

Given that the information is transferred before anyone is arrested, and not in response to a request from the Indonesian authorities, there would be no need to refer to the Attorney-General, but the AFP Guideline would require internal AFP approval. In the immediate aftermath of the executions of Chan and Sukumaran, the heat would no doubt be enough to weigh against providing information. But in the months or years to come, after the heat has subsided, how would the balance be struck? If the purpose for providing the information was characterised as investigating higher-level drug traffickers in Australia, or promoting good relations for the greater purpose of combating terrorism or “people smuggling”, would the same information be provided again? Given how unrepentant the AFP have been about their role in the Bali Nine death sentences, I suspect that it would. But the broader point is that under the regime operating under both Labor and Liberal governments, there is ample scope for people to be delivered to death row on a platter if there are other interests that the government – or indeed AFP management – consider more important.

Rather than political squabbling over minor Liberal tweaking to an enormous Labor loophole, momentum of this tragic event, brought about by the complicity of Australia’s police and its government, should be harnessed to prohibit information sharing in cases potentially leading to the death penalty. Australia should take the opportunity to act on the Human Rights Committee’s 2009 finding that the Australian safeguards were inadequate and in breach of our international human rights obligations. A relatively simple legislative amendment would suffice, but that would take some real political courage.

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